RYAN KREDA

v.

DHSMV

Before O’Kane, Komanski, and Thorpe, J.J.

PER CURIAM.

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

Ryan Kreda (“Petitioner”) seeks timely certiorari review of the order of the Final Order of License Suspension issued by the Florida Department of Highway Safety and Motor Vehicles (“Respondent”). This Court has jurisdiction. See §§322.2615, 322.31, Fla. Stat. (2005); Fla. R. App. P. 9.030(c)(3); 9.100. On June 30, 2006, Petitioner was arrested for DUI and his driver’s license was suspended based on his refusal to submit to a breath test. On July 6, 2006, he requested a formal review hearing pursuant to section 322.2615(1)(b)(3), Florida Statutes, which was conducted on August 8, 2006. At the hearing, Petitioner’s attorney moved to dismiss on two grounds: (1) Respondent did not schedule the hearing within 30 days of the request. (2) There was a lack of probable cause to believe Petitioner was under the influence of alcohol. The arresting officer did not testify, but Petitioner’s attorney argued there was no statement of facts in the probable cause affidavit and no mention of the roadside sobriety tests. “They just state that they smelled alcohol. I don’t think that rises to the level of preponderance of the evidence.” The hearing officer reserved ruling and subsequently issued an order finding Petitioner was under the age of 21, drove a motor vehicle while under the influence of alcohol, and refused to submit to a breath test after being told such refusal would result in the suspension of his license.

Arguments I. The law enforcement officer lacked the probable cause necessary to suspend Petitioner’s driving privileges. II. The formal review hearing was not scheduled within the statutorily required 30 days.

Review of an administrative agency’s decision is governed by a three-part standard: (1) whether the agency accorded procedural due process; (2) whether the agency observed the essential requirements of the law; and (3) whether competent, substantial evidence supported the decision. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).1 “It is neither the function nor the prerogative” of the circuit court to re-weigh evidence and make findings of fact when reviewing such a decision. Dep’t of Highway Safety & Motor Vehicles v. Allen, 539 So. 2d 20, 21 (Fla. 5th DCA 1989). When the license of a person under 21 years of age is suspended for refusal to submit to a breath, blood, or urine test, “the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.” §322.2616(8)(b), Fla. Stat. (2005).2 Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.

2. Whether the person was under the age of 21.

§322.2616(8)(b)1. through 4., Fla. Stat. (2005).

Discussion - Argument I Petitioner was pulled over for operating a motor vehicle with a broken headlight. He acknowledges the officer reported smelling alcohol, but raises the following arguments: He was not operating the vehicle in a manner that would show a probability he was impaired by an unlawful amount of alcohol; i.e., he was not driving erratically or speeding. There was nothing to corroborate the officer’s belief that he was under the influence. There were multiple occupants in the vehicle and no evidence that he was the one who smelled like alcohol, or that he had bloodshot eyes or slurred speech. Finally, the probable cause affidavit lacked evidence of field sobriety tests; the officer did not conduct the horizontal gaze nystagmus, walk and turn, one leg stand, and finger to nose tests. Respondent contends it is erroneous for Petitioner to argue that the odor of alcohol alone was insufficient to find probable cause. The cases on which Petitioner relies³ relate to probable cause for an arrest, and Respondent argues arrest was not an issue for the

Discussion - Argument II Petitioner states he made the request for a formal administrative hearing on July 6, 2006. He argues the last day of the allotted period was a Saturday, August 5, 2006, and the next business day was Monday, August 7, 2006. However, the hearing was not held until August 8, 2006. Respondent argues the Bureau of Administrative Reviews office is closed on Mondays and therefore, the time ran until Tuesday, August 8, 2006.

/S/

ALICIA L. LATIMORE Circuit Judge

/S/ /S/ JANET C. THORPE

A. THOMAS MIHOK

Circuit Judge

Circuit Judge

Certificate of Service

I hereby certify that a copy of the foregoing Order has been furnished this __19_____ day of March 2009 to Jose A. Baez, Esquire, 37 North Orange Avenue, Suite 500, Orlando, Florida 32801; and Heather Rose Cramer, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, 6801 Lake Worth Road, #230, Lake Worth, Florida 33467.

/S/ Judicial Assistant